Criminal liability of the employer for violations in the field of labor relations

The most severe type of legal liability is criminal liability. The basis of criminal liability is the commission of an act containing signs of a crime under the Criminal Code of the Russian Federation (Article 8 of the Criminal Code of the Russian Federation). A guilty socially dangerous act prohibited by the Criminal Code of the Russian Federation under threat of punishment is recognized as a crime (Article 14 of the Criminal Code of the Russian Federation).

The norms of criminal law protect the most important social relations, including the fundamental rights and freedoms of man and citizen.

The most important goal of criminal liability is the general and particular prevention of crimes. It affects directly the individual.

Criminal liability for violation of equality of rights and opportunities for an employee may occur under Art. Art. 136, 143, 145, 145.1, 201, 285 of the Criminal Code of the Russian Federation.

Article 136 of the Criminal Code of the Russian Federation provides for liability for violating the equality of rights and freedoms of man and citizen.

Discrimination, i.e. violation of the rights, freedoms and legitimate interests of a person and a citizen, depending on his gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations or any social groups is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to one hundred and eighty hours, or by corrective labor for a term of up to one year, or by deprivation of liberty for a term of up to two years (h 1 article 136 of the Criminal Code of the Russian Federation).

The qualifying sign of the composition of this crime is the use of one’s official position (part 2 of article 136 of the Criminal Code of the Russian Federation).

The object of protection Art. 136 of the Criminal Code of the Russian Federation is the constitutional right of citizens to equality of rights and freedoms of man and citizen (Article 19 of the Constitution of the Russian Federation), including the right of an employee to equality of rights and opportunities. The objective side of this crime is an act that is expressed in violation of equality of rights. The subject of the crime is general (a person over the age of 16) – under part 1 and special – under part 2 of this article, which provides for the use by the guilty in violation of the equality of his official position. They can be: an official (Article 285 of the Criminal Code); an entity performing managerial functions in a commercial or other organization (Article 201 of the Criminal Code); other employee of a state, local self-government, commercial or other organization. The subjective side of the crime is characterized by direct intent.

According to Soldatkin D.V., Art. 136 of the Criminal Code of the Russian Federation belongs to the group of fictitious norms and should be excluded from the Criminal Code of the Russian Federation. He believes that in the current wording of Art. 136 of the Criminal Code, there is no such sign of a crime as public danger. Accordingly, depending on the circumstances referred to in Art. 136 of the Criminal Code, any kind of legal liability may arise. The objective side of the crime is not described62.

It should be recognized the point of view of Soldatkin D.V. about Art. 136 of the Criminal Code is interesting, but we do not quite agree with it. So, part 1 of Art. 14 of the Criminal Code determines which acts are a crime, and Part 2 of the same article determines that an action (inaction) is not a crime, although formally containing signs of any act provided for by the Criminal Code of the Russian Federation, but due to its insignificance it does not pose a public danger.

Thus, law enforcement agencies must decide whether this act falls under the signs of a crime and whether it has a sufficient degree of public danger to bring a person to criminal responsibility, whether this act has caused a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society protected by law and states.

Ideally, I would like the Criminal Code of the Russian Federation to contain articles specifically dedicated to the protection of equality of rights and freedoms of man and citizen, including equality of rights and opportunities for an employee, where the subjective and objective sides of the crime will be indicated in more detail. But at present, Art. 136 of the Criminal Code of the Russian Federation cannot be excluded from the Criminal Code of the Russian Federation, since this article is the only guarantee of equality of rights and opportunities for each employee by criminal law.

Article 145 of the Criminal Code of the Russian Federation deals directly with liability for discrimination (based on pregnancy, having children under 3 years old). The victim here can only be a woman. The object of the crime is a woman’s right to work (Article 37 of the Constitution of the Russian Federation). The objective side is expressed in an unreasonable refusal to hire or unjustified dismissal from work. The subjective side is characterized by direct intent. A mandatory feature of the subjective side of the composition is a special motive: a woman is denied employment or dismissed from work due to her pregnancy or the presence of children under the age of 3 years. The subject of the crime is special – the employer (an individual or the head of an organization).

Some lawyers speak out against the special consolidation of the equality of rights and opportunities for men and women in the Constitution of the Russian Federation63.

In their opinion, the Criminal Code of the Russian Federation should contain articles relating to the protection of the rights and legitimate interests of all citizens, regardless of gender. In particular, Soldatkin D.V. proposes to amend Art. 145 of the Criminal Code and proposes to bring to criminal liability for unreasonable refusal to hire or unjustified dismissal of an employee, committed on the grounds of discrimination64. That is, all citizens, regardless of gender, can be victims under this article.

This position, from our point of view, cannot be recognized as correct. Since in labor relations a pregnant woman, as well as a woman with young children, is the most vulnerable category of persons both in employment and in dismissal from work. Therefore, the most severe responsibility for such violations is necessary – criminal liability, which will ensure equality of rights and opportunities for women in the labor sphere.

Articles 143, 145.1, 201, 285 of the Criminal Code of the Russian Federation refer to norms that are not directly anti-discrimination, but can act as a tool to combat discrimination in the labor sphere, since the subjective side of crimes under these articles may also include discrimination motives.

The object of the crime under Art. 143 of the Criminal Code of the Russian Federation are safe working conditions. An additional object is the health or life of a person. The objective side is expressed: in the form of an action or inaction that violates the rules of labor protection at work, consequences in the form of causing serious harm to human health, a causal relationship between the violation of the rules and the result. The subjective side is characterized by a careless form of guilt. The subject is the person who was responsible for compliance with labor protection rules.

The object of the crime under Art. 145.1 of the Criminal Code of the Russian Federation is the right to timely payment of wages. The objective side is the unjustified non-payment of wages for a period of more than two months. The subjective side is characterized by direct intent and motive: selfish interests and other personal interests. The subject of the crime is special – the employer (an individual or the head of an organization)65.

Bringing to criminal responsibility for violation of equality of rights and opportunities of an employee is also possible under Art. Art. 201, 285 of the Criminal Code of the Russian Federation. These crimes infringe on the interests of service in commercial and other organizations, the legitimate interests of the organization (Article 201 of the Criminal Code) and the interests of the public service (Article 285 of the Criminal Code).

Abuse of one’s powers in a number of cases entails the infringement of human and civil rights. Human and civil rights, the interests of society are an additional object of crimes under Art. Art. 201, 285 of the Criminal Code. On the objective side, the acts provided for in Art. Art. 201, 285 of the Criminal Code are characterized by the use of their powers by a person performing managerial functions in an organization, an official contrary to the interests of service in a commercial organization, as well as the interests of the public service. The objective side provides for the presence of significant harm. The subject of crimes under these articles is special: a person performing managerial functions in an organization (note 1, article 201 of the Criminal Code), an official (note 1, article 285 of the Criminal Code).

We examined the types of legal liability for violating the equality of rights and opportunities for an employee. In conclusion, in our opinion, it is necessary to say a few words about the problems of distinguishing between different types of offenses.

There is no single position in science regarding the possibility of combining administrative and disciplinary responsibility.

We join the opinion expressed by I.S. Samoshchenko. He believes that the combination of administrative and disciplinary sanctions in the case of combining in one act the elements of two different offenses – administrative and disciplinary is possible, because. In this case, not one, but two offenses. The combination of administrative and disciplinary liability is impossible only when the law directly provides for only one type of liability in the event of a combination of administrative and disciplinary offenses in one act66.

With regard to criminal and administrative responsibility, there clearly cannot be a combination of a crime and an administrative offense in one act. As a general rule, a crime as a socially dangerous act also covers the signs of the corresponding administrative offense, and criminal punishment absorbs possible administrative penalties.

Chapter 3. Some problems associated with the responsibility of the employer and employee in labor relations

Issues related to the responsibility of the head of the organization as a representative of the employer

The specificity of disciplinary liability is a consequence of the special legal regime for regulating the work of the head of the organization.

Before considering the features of disciplinary responsibility, it is necessary to determine the position of the leader in the circle of subjects of labor discipline. Analyzing the legal definition of labor discipline, enshrined in Art. 189 of the Labor Code of the Russian Federation, we can conclude that labor discipline in an organization is understood as the lawful behavior of participants in labor relations. From the subjective side, labor discipline means subordination to the requirements of the legal order in the organization, expressed in the clear and conscious performance of duties and the exercise of powers by each employee of this organization67.

It should be noted that this definition is not complete, since only employees of the organization appear in it. The obligation to observe labor discipline is established by labor legislation as one of the main duties of an employee (Article 21 of the Labor Code of the Russian Federation). However, despite the fact that in the list of basic rights and obligations of the employer, enshrined in Article 22 of the Labor Code of the Russian Federation, compliance with labor discipline is not directly indicated as an obligation of the employer, it is certainly implied.

This is confirmed by the obligation of the employer, enshrined in the above article, to comply with laws and other regulatory legal acts, local regulations, the terms of the collective agreement, agreements and employment contracts, that is, a similar obligation to obey the requirements of law and order in the organization, which defines the concept of labor discipline.

The foregoing allows us to conclude that the employer, along with the employee, is the subject of labor discipline. However, only an employee of an organization can be the subject of a disciplinary offense and disciplinary liability, which is confirmed by Article 192 of the Labor Code of the Russian Federation, which defines a disciplinary offense as a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him. Therefore, one cannot agree with the existing opinion of some Russian lawyers that labor legislation provides for disciplinary liability not only for employees, but also for the employer68. Nevertheless, the analysis of international experience in the legal regulation of labor discipline given in the literature makes it possible to judge the good elaboration and effective application in the most civilly developed countries of the norms of disciplinary liability of employers for violating certain provisions of social and labor legislation. Specialists in the field of international labor relations even note the fact that, unlike Russian labor legislation, in the labor codes of many European countries, the number of rules governing the disciplinary responsibility of the employer prevails over the number of rules on the responsibility of ordinary employees of the organization. For example, an interesting fact is pointed out – in the presence of the employer’s obligations for organizing the labor process (and responsibility for failure to fulfill these obligations, including disciplinary responsibility) developed in detail by French legislation, the Labor Code of France almost completely lacks rules on the responsibility of employees69.

The importance of this problem for this work lies in the fact that the obligations of the employer to maintain law and order in the organization are implemented by its body – the head of the organization. Taking into account the above reasoning about the possibility of violations of labor discipline by the employer, we can talk about the dual nature of the disciplinary responsibility of the head – the disciplinary responsibility of the head, who is an employee of the organization and the disciplinary responsibility of the head, acting as a body of a legal entity – the employer who violated the requirements of law and order. It is clear that the subject of disciplinary responsibility should be the subject of a disciplinary offense, which in the second case, it would seem, is ambiguously defined70. However, taking into account the fact that a legal entity exercises all its rights and obligations through its representatives, in labor relations through the body – the head of the organization, any violation of the requirements of law and order in labor relations by the employer is a direct consequence of violations by the head of the organization. At the same time, the disciplinary responsibility of the head, acting as a body of a legal entity, is justified. However, the foregoing does not prove the legitimacy of the absence in the definition of labor discipline given by the Labor Code of the Russian Federation, such a subject as the employer, but only confirms the possibility of appearing as subjects of disciplinary liability only for employees of the organization – both ordinary and manager.

As already mentioned, the duality of the nature of the manager’s disciplinary responsibility is a direct consequence of the complexity of his legal status. It is also reflected in the attitude of the legislator to the mandatory application of disciplinary liability. As a general rule, if an employee commits a disciplinary offense, the employer has the right to apply a disciplinary sanction, or may not apply it (Article 192 of the Labor Code of the Russian Federation). At the same time, according to Art. 195 of the Labor Code of the Russian Federation, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to dismissal, if the facts of violations indicated in the statement of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory acts on labor, the terms of the collective agreement, agreements. In the first case, the need to apply a disciplinary sanction in relation to the manager-employee is determined by the employer. In the second case, Art. 195 of the Labor Code of the Russian Federation regulates the mandatory liability of the head as a body of a legal entity71.

Taking into account these considerations, it seems reasonable to further consider the disciplinary responsibility of the leader from the standpoint of the existence of the aforementioned duality.

First of all, it is necessary to consider the question of the expediency and effectiveness of applying the institution of disciplinary responsibility to the head of the organization. Obviously, labor discipline can be achieved by positive methods (persuasion, encouragement) and the method of coercion (bringing to disciplinary responsibility). Of course, these measures are applicable to all categories of employees, including they can, and in cases established by law, should also apply to the head of the organization (Article 195 of the Labor Code of the Russian Federation).

Many authors, referring to law enforcement practice, point out that at present the institution of disciplinary responsibility in labor law as a whole has become ineffective. Opinions are expressed that today the disciplinary responsibility of an employee is losing its educational value, since the main measure of disciplinary action is dismissal.

In addition, the absence of a clear indication in Articles 81 and 192 of the Labor Code of the Russian Federation of the conditions for dismissal for violation of labor discipline provides the employer with the opportunity in a number of cases (except for paragraphs 5, 6 and 10 of Article 81 of the Labor Code of the Russian Federation) not to comply with the procedure provided for by Art. 193 of the Labor Code of the Russian Federation, which worsens the legal status of the employee as a subject of labor relations72. However, abstracting from the problems of disciplinary responsibility of ordinary employees, we can say that disciplinary responsibility is still a suitable and, undoubtedly, necessary lever for regulating the labor discipline of the administrative staff of the organization, for example, middle managers. But at the same time, its weak applicability in practice to the regulation of the work of the top management of the organization becomes obvious.

According to the norms of labor legislation, the head, being an employee of the organization, is obliged to comply with the labor schedule, which, in accordance with Art. 189 of the Labor Code of the Russian Federation includes the rights, duties and responsibilities of employees, working hours, rest time, incentives and penalties, as well as other issues of regulating labor relations in the organization. The possibility of violating the labor schedule is not ruled out, which is a disciplinary offense and should entail disciplinary liability. This statement is equally true for any employee of the organization, including the head.

However, in practice, a problem arises with the subject of bringing the head to responsibility, because if a disciplinary offense committed by an ordinary employee is likely to become known to the administration of the organization and the employee will be brought to disciplinary responsibility, then the offense committed by the head of the organization will most likely go unpunished, as it will not be detected by the employer. It is clear that Art. 195 of the Labor Code of the Russian Federation, which regulates the obligation of the employer to hold the manager accountable, if the representative body of employees detects violations of labor legislation by the manager and submits an appropriate application, it can also be applied in case of non-compliance by the manager with labor legislation that is not directly related to the violation of the rights of other employees73.

Violation by the manager, say, of the labor regime, if it becomes known to the representative body of employees, can also serve as the basis for the employer’s obligation to bring the manager to disciplinary responsibility. But what is the probability that the fact, for example, that a leader is late for work or is absent from the workplace, will become known to the representative body of workers? Moreover, the specifics of the leader’s activity provides for the frequent absence of the latter in connection with business meetings and business trips. Moreover, at present, the vast majority of organizations, mainly medium and small ones, do not have a representative body of workers at all.

As already noted, such non-observance by the head of labor discipline, as a rule, does not entail a violation of the rights of other employees.

However, it has a strong demotivating effect and reduces the effectiveness of the organization’s management system, which directly affects the interests of the owner (shareholders, participants, owner of the organization’s property). Summarizing these arguments, it should be noted that the employer does not have effective mechanisms for monitoring the observance of labor discipline by the manager. It seems, however, that there is no urgent need to develop these mechanisms using the institution of disciplinary responsibility, because in order to protect the interests of the owner, labor legislation provides for ample opportunities to use the full liability of the manager, which occurs, among other things, in cases of damage caused by unfair and poor-quality management (Article 277 TC RF).

Analysis of Art. 195 and other provisions of the Labor Code of the Russian Federation allows us to conclude that it is mandatory to bring a manager to disciplinary liability only if there is a corresponding statement from the representative body of employees. This means that if a manager’s disciplinary offense is detected directly by the body authorized to make decisions on the application of a disciplinary sanction to the manager, for example, by the general meeting or the board of directors of a JSC, it remains for the latter to decide on the need to bring the manager to disciplinary liability. This is absolutely fair if the violations by the head of labor discipline do not affect the rights of other employees of the organization. An example is the violation of the labor regime by the head. However, it is possible for the head of the organization to commit disciplinary offenses that violate the rights of employees of the organization, for example, failure to fulfill the employer’s obligations to ensure safe working conditions (Article 212 of the Labor Code of the Russian Federation) or late payment of wages. In this case, it is extremely unreasonable to attribute the issue of bringing the head to disciplinary responsibility solely within the competence of the employer, who in some cases may himself be interested in such violations.

Thus, it seems necessary to establish in the Labor Code of the Russian Federation the obligation of the employer to hold the head of the organization liable even if there was no corresponding statement from the representative body of employees.

As already mentioned, this is necessary in the event that the manager commits disciplinary offenses affecting the rights of employees of the organization, that is, we are talking about the obligation to bring the manager to disciplinary responsibility in connection with the performance of the functions of a body of a legal entity74.

Nevertheless, it is quite possible that from the standpoint of strengthening labor discipline and protecting the interests of the owner, it would be useful to extend the obligation of the employer (even in the absence of a statement from the representative body of employees) to bring the manager to disciplinary responsibility and in cases where the latter commits violations that do not directly affect the rights other workers, for example, non-compliance with the working regime. However, the practical effectiveness of these measures to change the provisions of the Labor Code of the Russian Federation still remains in doubt, since the body of a legal entity authorized to make decisions on bringing the head to disciplinary liability, if interested, can always turn a blind eye to detected, quite possibly even self-sanctioned, violations leader.

This problem can be solved by fixing in the Labor Code of the Russian Federation the obligation of the employer to bring the manager to disciplinary responsibility in case of confirmation of the facts of violations by the latter of labor legislation, identified by the employees of the organization (in the absence of a representative body of employees) and indicated in the application to the employer.

It seems that the identification and correction of such gaps in labor legislation is a very important task, quite possibly even more priority in terms of regulating the labor discipline of a manager than improving the institution of disciplinary responsibility. As already mentioned, this is due to the fact that the active use of positive motivational measures allows solving the main problem of the manager’s disciplinary responsibility – the weak effectiveness of this tool for regulating the labor discipline of the head of the organization.

3.2 Problems of responsibility of the parties to the employment contract

Labor legislation traditionally regulates two types of liability of the parties to an employment contract: material and disciplinary. Of course, employers and employees can also be brought to administrative, criminal and other types of liability, but the relations that arise in this case are the subject of regulation of other branches of law.

The most developed in the Labor Code turned out to be protective norms devoted to the material liability of the parties to an employment contract – section XI, which includes three chapters (37–39)75.

In the case of disciplinary responsibility, the authors of the Labor Code of the Russian Federation limited themselves to four articles (192-195), without bothering with either the definition, or the principles, or the general characteristics of this institution. Moreover, some norms aimed at protecting the weak side of labor relations were not reproduced in the Labor Code.

The institution of liability in the new Code has undergone significant changes and can serve as a kind of model for regulating other issues of liability in labor law. The main merit of the compilers of the TC, in our opinion, is the development of the principles of this institution, which, although not formulated in one article, are easily singled out when analyzing section XI.

The developers of the shopping mall tried to give liability a symmetrical character. Therefore, depending on who suffered the damage, a distinction is made between the material liability of the employer (Articles 234–237) and the material liability of the employee (Articles 241–245)76. In this case, the general rule is the limited material liability of the employee, with the exception of special cases of full material liability.

The latter consists in the obligation of the employee to compensate for the damage caused in full and occurs only in eight cases provided for in Art. 243 TK. Here, fundamentally new are such grounds as causing damage as a result of an administrative offense, if such is established by the relevant state body, and disclosure of information constituting a secret protected by law.

Unfortunately, Art. 246 of the Labor Code, devoted to determining the amount of damage, does not mention shared and joint liability, which occurs in the event of damage caused by several employees. With shared liability, each of the tortfeasors is responsible only for his own actions and is obliged to compensate for the damage in the proportion that falls on him. Joint and several liability occurs in the event of damage as a result of joint criminal actions of employees established by a court verdict77.

Finally, we will touch upon collective (team) liability, which can be introduced when employees jointly perform certain types of work related to the direct maintenance of monetary or commodity values, when it is impossible to distinguish between the responsibility of each employee. It appears that Art. 245 of the Labor Code can be supplemented with a paragraph as follows: “The damage subject to compensation caused by the team (team) is distributed among employees in proportion to the average earnings of each employee and the time he actually worked for the period from the last inventory to the discovery of damage.”

Note that the legislator decided to “save” on disciplinary responsibility. The fact is that despite the repeated use of the term “disciplinary responsibility” in the text of the Labor Code, this institution, oddly enough, has not been embodied in the Code as a single systemic entity. Therefore, the specifics and features of the application of the relevant norms can only be established through a scientific analysis of the Labor Code, which sometimes creates significant difficulties for the law enforcer.

First, let us denote the omissions of a general nature in the regulation of labor discipline issues, since it is in Section VIII of the Labor Code that the norms on disciplinary responsibility are included.

The volume of this section is small (only 7 articles – there were 12 in the Labor Code), which is due, in particular, to the loss of some norms of the previous law and allows us to draw two, at first glance, mutually exclusive conclusions78. First, the employer has ample opportunities for local rule-making in this area. The second – he, “echoing” the conciseness of the legislator, must strictly comply with the requirements of the law, not allowing himself independent steps “to the left or to the right.”

However, it is often impossible to follow the prescriptions of the law due to the imperfection of its norms. The effectiveness of the implementation of the norm largely depends on its quality factor and, in particular, on the observance of the rules of legislative technique in the process of rule-making. V. I. Nikitinsky rightly argues that “technical defects in legal norms caused by the violation of certain requirements of legislative technique, in many cases distort the content of the norms, give rise to inconsistency in practice, and reduce the effectiveness of legal regulation”79.

At the same time, most of the defects can be eliminated only by introducing amendments and additions to the law, and some by means of local rule-making.

Regarding the first, we note that the internal contradictions of section VIII of the Labor Code begin immediately with the names: the section “Labor regulations. Labor discipline”, art. 189 “Labor discipline and work schedule in the organization”, chapter 30 “Labor discipline”. The basic, primary concept is labor discipline, which includes the labor schedule as the basis. Therefore, there is no need for a double title of section, chapter and article. Chapter 30 might be titled “Incentives for Work. Disciplinary responsibility”80.

The Labor Code gives a new legal definition of labor discipline, which, unlike the previous one, does not contain instructions for employees to comply with moral obligations, but requires obligatory obedience to the rules of conduct defined in accordance with the Code, other laws, collective agreements, agreements, labor contracts, local regulatory acts. Most likely, we are talking about the rules of conduct for employees in the labor process for a given employer, or rather, about labor duties, the failure to perform or improper performance of which, as it turns out from Art. 192 of the Labor Code, and is a disciplinary offense. We believe that in order not to bother the law enforcer with such logical delights, it is in this way that labor discipline should be defined.

In addition to the main obligations of the employer under Art. 22 and 189 of the Labor Code also establishes an additional duty of the latter to create the conditions necessary for employees to comply with labor discipline. In our opinion, this obligation should be specifically identified and specified, as is done in Art. 239 of the Labor Code, which contains a list of circumstances excluding the material liability of the employee, which include the employer’s failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee. In our case, we can talk about the obligation of the employer to create organizational and economic conditions that allow employees to conscientiously fulfill their labor duties.

And, undoubtedly, in accordance with the norms on material liability, it is necessary to fix the concept of disciplinary liability in the Labor Code and determine its constituent parts: the basis, conditions for the onset, types and principles of application.

As for the internal labor regulations, it is necessary to emphasize the obligation of their development and adoption by the employer. It is to them, and not the organization, as follows from the text of Art. 189 TC. Otherwise, it turns out that other entities, in particular an individual entrepreneur, may not accept this local act.

The conscientious performance of labor duties as a basis for rewards noticeably impoverishes the concept of encouragement, which is usually interpreted as public recognition of the results of a highly productive, high-quality, impeccable work of an employee. In Art. 191 of the Labor Code, unfortunately, does not reflect the difference between legal obligations and manifestations of labor activity, as was done in Art. 131 Labor Code.

Article 192 of the Labor Code, devoted to disciplinary sanctions, at first glance, does not contain material for local rule-making. The list of disciplinary sanctions is traditionally exhaustive and is not subject to broad interpretation, i.e., it is impossible to apply penalties both provided for by the previous legislation in force (for example, a severe reprimand) and “invented” by the employer (for example, censure, warning, reprimand with a warning). But it seems that the employer can use the norm of Part 3 of Art. 137 of the Labor Code, which prohibited encouraging the employee during the period of the disciplinary sanction, including such a provision in the internal labor regulations.

The arguments of O.V. Abramova, who points out that by encouraging violators of labor discipline, the employer undermines the principle of the institution of disciplinary responsibility – the lasting (for one year) impact of a disciplinary sanction81.

We add that the difference between disciplinary sanctions and additional disciplinary measures is that the former are applied for failure to perform or improper performance of labor duties, the main part of which is provided for by law, and the latter for non-fulfillment, as a rule, of the moral duties of the employee (i.e. for not showing labor activity), which are stimulated and encouraged in the form of bonuses, allowances, additional payments provided by the employer at their own expense. In other words, in the second case, we are talking about non-compliance by the employee with the conditions for the provision of certain material benefits, the right to receive which is regulated by the employer’s local regulations.

Thus, the application of disciplinary measures not provided for by the Labor Code is the right of the employer, subject to the following conditions:

1) these measures are related to the deprivation or reduction of additional material benefits compared to the legislation provided to the employee at the expense of the employer;

2) their application should not reduce the level of rights and guarantees of employees established by labor legislation;

3) their types and procedure for application are established by local regulations, and above all – by the rules of internal labor regulations.

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